When legal rights and treatment conflict

By
Cynthia Calkins, PhD, John Jay College of Criminal Justice, and Robert A. Beattey, JD, Graduate Center at City University of New York

November 2013, Vol 44, No. 10

Print version: page 22

In 2001, Martin Roman was convicted of sexually assaulting his daughter and was ordered by the Pennsylvania Department of Corrections to participate in sex offender treatment. Appealing his conviction, Roman maintained his innocence, aware that admitting to the crime could be used against him in his appeal. Pennsylvania's sex offender treatment program requires an admission of guilt as a prerequisite to treatment. Because Roman had denied his sex offenses, he was not allowed into the treatment program. He was later denied parole on the basis of having refused treatment.

Another case, Firth v. Shoemaker, also centered on the admission of crimes as a prerequisite for treatment. Scott Firth's probation was revoked and he was resentenced to an indeterminate period for violating his probation after he was released from detention for molesting his minor daughter over an eight-year period. In Firth's habeas action, the district court construed him to be arguing that the Colorado Department of Corrections (CDOC) had violated his Fifth Amendment right against self-incrimination by requiring him to admit guilt before he could participate in a sex offender treatment program. On appeal to the 10th Circuit, Firth argued that CDOC employees were requiring him to fabricate fantasies, daydreams and flashbacks in order to progress with treatment.

Should treatment programs require sex offenders to admit their offenses as a condition of entry? These cases suggest that convicted offenders who deny their offenses may be denied treatment, which may then affect their parole opportunities. In asserting their Fifth Amendment right against self-incrimination, Roman and Firth argued that they were forced to choose between admitting their guilt as required by the treatment program or relinquishing their opportunities for release. While the 3rd Circuit acknowledged that Roman was faced with an exceptionally difficult decision, it found that denial of parole did not constitute compulsion necessary to support a Fifth Amendment claim (Roman v. DiGuglielmo). The 10th Circuit found that Firth had failed to establish that he was forced to make false statements, therefore leaving unresolved the legal question presented.

While denial is common among sex offenders and nearly all treatment programs in the United States require some form of offense disclosure for successful program completion (McGrath et al., 2010), it is not altogether clear whether overcoming denial is important from a risk or treatment perspective. Meta-analyses reveal that sex offenders who deny their offenses are no more likely to re-offend and thus consider denial a "potentially misleading risk factor" (Hanson & Morton-Bourgon, 2005). Ware and Mann (2012) argued that the "overemphasis" on a defendant's taking responsibility is not evidence-based and that insisting on a confession can damage the therapeutic relationship, resulting only in offenders telling the story that they think others want to hear. Levenson (2011) suggested that denial should be considered part of the change process and that providing a therapeutic environment that promotes honesty is better than simply refusing treatment to categorical deniers. From a treatment and risk-management perspective, the same risk factors for re-offense could be addressed whether the offender admits guilt or not.

The U.S. Supreme Court has recognized that the court-imposed requirement to be truthful in treatment ordered as a condition of probation does not nullify the right to assert the Fifth Amendment (Minnesota v. Murphy, 1984). As a result, it is likely that cases like Roman and Firth will continue to arise. Clinicians' adoption of evidence-based practices, which do not necessarily call for a participant's admission of guilt, could relieve demand upon limited court resources without any cost to the therapeutic endeavor.

"Judicial Notebook" is a project of APA's Div. 9 (Society for the Psychological Study of Social Issues).